Ball v. Williamson

• Decision Date: 18 December 1957
• Parties: S. Osborn BALL v. Eugene A. WILLIAMSON and his wife, Mary P. Williamson.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 659

146 N.E.2d 659

336 Mass. 547

S. Osborn BALL v. Eugene A. WILLIAMSON and his wife, Mary P. Williamson.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Oct. 10, 1957.

Decided Dec. 18, 1957.

S. Osborn Ball, Provincetown, pro se.

Kenneth E. Wilson, Hyannis, submitted a brief, for defendants.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE, and CUTTER, JJ.

COUNIHAN, Justice.

In this action of contract the plaintiff, who is an assignee of his wife, Ethel, seeks to recover a commission for procuring a customer for certain real estate in Truro formerly owned by the defendants or in quantum meruit for services in the sale of said real estate. ¹ The action was referred to an auditor whose findings of facts were not to be final. After the filing of the auditor's report neither party filed a statement insisting upon a jury trial and neither party reserved the right to introduce evidence other than the report. The judge heard the case without jury upon the auditor's report only. Rule 88 of the Superior Court (1954). The action comes here principally upon the plaintiff's exception to the allowance of the defendants' motion for judgment for the defendants upon the auditor's report. There was no error.

Pertinent facts found by the auditor are as follows: Ethel Archer Ball, the wife of the plaintiff, was engaged in the real estate business in Provincetown. On April 15, 1952, the male defendant, hereinafter called the defendant, wrote to her soliciting offers for the purchase of the Truro real estate. He fixed his asking price at $23,500 but requested that any offer reasonably close be submitted. He further added, 'Much consideration will be given to the type of purchaser involved, since we have the greatest consideration for the people in the neighborhood and the buyer must be an acceptable type.'

At the same time the defendant wrote a similar letter to other brokers in the vicinity of Truro. Mrs. Ball was aware that other brokers were soliciting offers. On September 2, 1952, the defendant wrote her again saying, 'should you find a financially able buyer * * * who will pay a price to net me, after commission is paid, $17,500 and if you feel the buyer is of the right type for the neighborhood, please advise me. * * * I'm still trying to find a compatible neighbor for the Wilson's and Lowrie's' (Emphasis supplied.)

In the summer of 1953 Mrs. Ball interested people named Manning in this real estate. On July 9, 1953, the defendant by letter to Mrs. Ball declined an offer of $14,000 net but added that he would consider an offer of $18,000 net. Mrs. Ball continued negotiations with the Mannings who subsequently signed a purchase and sale agreement dated July 21, 1953, in the usual form, agreeing to pay $18,000 for the property and to assume payment of the commission. On the same day the plaintiff mailed a copy of the agreement to the defendant with a letter in which he said, 'If agreeable [emphasis supplied] then, will you and Mrs. Williamson sign both copies * * * and return me one completed copy; whereupon I will send check to [you for] the usual ten (10%) per cent deposit.' Up to that time the defendant did not know and had not notified Mrs. Ball that the Mannings would be acceptable buyers. Mrs. Ball on the same day at about 11 A.M. telephoned the defendant's home in New Jersey and in the absence of the defendant talked with Mrs. Williamson. Mrs. Ball told her of the offer and the proposal to deposit $1,800 upon the receipt of the signed agreement. Mrs. Williamson expressed herself as pleased and said she would tell the defendant when he returned home from a trip. It is plain from the auditor's report that the defendant conducted all negotiations with Mrs. Ball for the sale of this real estate.

The auditor expressly found that the telephone call referred to and the purchase and sale agreement of the Mannings were not brought to the attention of the defendant until July 23, 1953. In the meantime one Kane, another broker, on July 21, 1953, telegraphed the defendant 'confirming' a sale to a customer who agreed to pay the defendants' price. On July 23, 1953, Kane again telegraphed the defendant that a purchase and sale agreement from his customer was in the mail and that a check from Kane for ten per cent of the purchase price had been wired him. This agreement was signed by a Mr. and Mrs. Kahn. The price was set out as $19,000 with a deposit of $1,900.

The letter from Mrs. Ball and the telegrams from Kane were brought to the attention of the defendant on July 23 at about the same time. The defendant at that time 'knew' that the Kahns would be acceptable neighbors, having been so informed by one of the adjoining property owners. The defendant accepted the Kahn offer and on July 27, 1953, notified Mrs. Ball to that effect.

The auditor expressly found that the defendant in accepting the Kahn offer considered the acceptability of the Kahns and also that they had made an actual deposit of $1,900 whereas he had no knowledge that the Mannings would be acceptable as desirable neighbors and their agreement only provided that a deposit on the purchase price would be made when the agreement was signed and returned to Mrs. Ball.

The plaintiff in his bill of exceptions alleges errors in the action of the judge in disposing of several matters prior to the allowance of the motion for judgment. One of these is the denial of a motion to certify that certain exhibits may be considered by this court without reproducing them in the record. Rule 6 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 696. However, all of the material exhibits are incorporated in whole or in part in the auditor's report and therefore are before us. Other alleged errors are the failure of the judge...